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They Told Her She Could Register to Vote. Why Should She Be in Prison for Their Error?

by Brooke Kaufman 

A USA Today Opinion article from Georgina Yeomans and Kevin Jason, who serve as assistant counsel at the NAACP Legal Defense and Educational Fund Inc., questions the disparate treatment of members of law enforcement and citizens in cases of misconduct or actual mistakes. Yeomans and Jason use the story of Pamela Moses to illustrate how citizens — “particularly Black citizens” — are punished by a legal system designed to shield police officers and other officials from accountability.

Moses, a Black Lives Matter activist and recent mayoral candidate in Memphis, was convicted of a felony in 2015. In 2019, after completing her prison sentence, Moses attempted to restore her voting rights. Despite being told by a judge that she was still on probation, an official from the probation office signed Moses’ restoration form, which she then used to re-register as a voter in Tennessee. Corrections officials soon discovered the probation officer’s error, but at trial, the prosecution “crafted a narrative” that Moses had intentionally “tricked” the officer into helping her commit voter fraud.

Ultimately, Moses was convicted and sentenced to six years in prison. Her case, however, is not an anomaly, as prosecutors frequently pursue prison sentences for “mistaken voters” like Hervis Rogers, who was arrested and charged with two counts of illegal voting, a felony, after voting in the 2020 presidential primary while still on parole.

“Mr. Rogers’s prosecution really shows the danger of over criminalizing the election code and the process of participating in a democratic society,” Tommy Buser-Clancy, a senior staff attorney for the American Civil Liberties Union of Texas and one of the lawyers who represented Mr. Rogers, said in the New York Times. “In particular, it raises the danger that criminal statutes in the election code are being used to go after individuals who at worst have made an innocent mistake. That’s not what any laws should be doing.”

Moses’ case has also been compared, in stark relief, to the “relative leniency” afforded to white voters like Bruce Bartman, who was convicted of felony perjury and unlawful voting after casting a fraudulent ballot in his dead mother’s name, according to the Washington Post.

Yeomans and Jason draw further comparisons between the injustice Moses faced and the “unequal standards” applied to members of law enforcement who violate the Constitution and perpetrate violence against citizens. In response to the over-policing of Black and brown communities, courts have continually fortified the doctrine of qualified immunity, which shields police officers from being sued unless the “unreasonableness of [their] actions was ‘beyond debate.’” The standard for criminal conviction is even higher and requires proof that the officer acted with “specific intent” to deprive a citizen of their constitutional right. Qualified immunity — though the Supreme Court considers it “necessary” to protect the authority of law enforcement — treats official misconduct as a mistake, which puts citizens at risk of constitutional violations and imminent harm. The doctrine also exemplifies why cases like that of Pamela Moses are so egregious.

“There is no justification for a system in which misconduct by those charged with enforcing and upholding the law is treated as a mistake while regular citizens have their actual mistakes treated as crimes,” write Yeomans and Jason.

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